Further, the facts of the case complicated the legal battle. For one, the shots were fired by Italian marines privately hired for guard duty in a private Italian vessel, but the victims were unarmed Indian fishermen on an Indian vessel near the Indian coast and on a routine fishing expedition within India’s exclusive economic zone.
The incident occurred either near or beyond India’s territorial sea (up to 12 nautical miles from the shore) where it enjoys sovereignty, or within the contiguous zone (area adjacent to the territorial sea between 12 nautical miles and 24 nautical miles) where the country, arguably, has control only over specified offences.
Italy’s argument was that the United Nations Convention on the Law of the Sea provides for the exclusive jurisdiction of the flag state over the ships that operate on the high seas; that the event occurred on the high seas, beyond India’s territorial waters and jurisdiction; and that the two marines were only performing their duty “to prevent piracy” and were, therefore, eligible for sovereign immunity.
India argued that the case was well within its jurisdiction because two unarmed Indian citizens were killed on an Indian fishing vessel and that claims of the act being committed just beyond the country’s territorial waters would not invalidate the legally valid claims (under the provisions of the Indian Penal Code) favouring justice for the Indian victims through Indian laws and courts.
Both sides also argued that because it involved crimes by or against their citizens, under their own laws, they should be allowed to conduct the investigation and prosecution.
After an eight-year-old legal battle, the international maritime tribunal rejected India’s claim for exclusive jurisdiction to try the two Italian marines.
In a clear setback to India, which had been insisting that the marines must face trial as per the Indian law, the tribunal said the marines were “entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines”.
The tribunal, however, ruled that Italy should pay compensation to India for “the loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew” of the Indian fishing vessel.
The tribunal also rejected Italy’s claim to compensation for the detention of the marines.